What Do You Do If The Government Makes A Decision You Disagree With Regarding a Contract?
A small business has several remedies that can range from filing a basic protest to actually taking the government to court.
First, it is important to understand the basic terminology in order to understand the options available to a company.
What Is The Difference Between A Protest vs A Dispute?
A protest involves a defective bid or awarding a contract to a different bidder. In contrast, a dispute involves an issue with the contracting officer that arises after you have been awarded the government contract.
The following are the three Federal Bid protest Levels:
- Judicial action was brought to the United States Court of Federal Claims (COFC).
- Protest filed with the (GAO) Government Accountability Office.
- An agency-Level protest was filed with the agency conducting the procurement.
It is important to note that a protest must be filed within 10 days after the basis of the protest is known or should be known. Any protests that exceed this 10-day limit will automatically be thrown out. If you want to go forward you will have to go to a higher level like the United States Court of Federal Claims.
Protesting A Bid Or Award
You must be an interested party, which means a prospective bidder who will be affected by the award economically. This usually means that you will receive the award if your protests are sustained.
One such challenge would be that the bid was defective. A defective bid can include the following:
- The omission of a required provision
- The ambiguity of Important facts
- Indefinite evaluation factors.
The termination of a contract may also be protested if the protest alleges that the termination was based on improprieties in the award of the contract. This means that you can protest the bid, award, or termination of the contract. Make sure that you are very aware of the deadlines set for a protest.
Decision To Protest
If you do decide to protest, it is in your best interest to call counsel as soon as possible. Contract law can be very complicated and it would be a very good idea to consult with your legal counsel.
If you do decide to protest, you have avenues that can guide you through the process. You can go to your local PTAC to get started in the process and/or seek legal counsel. You also should familiarize yourself with Part 33.1 of the FAR. This will help you understand the requirements and your rights.
Disputes
A dispute is when a government contractor has issues or material disagreements that relate to the contract itself and therefore files a claim.
A claim is defined as a demand by one of the contracting parties seeking, as a matter of right, the payment of money; the adjustment or interpretation of contract terms, including the time of performance. This also includes other relief that arises under or relating to the contract.”
Disputes Are Only For The Contractor
Only a contractor is allowed to file a dispute claim. This means that subcontractors can not enter into the federal dispute process. This is because the contractor is an original party to the contract.
Typical Contractor Disputes
Some common contractor disputes are as follows:
- Defective specifications
- Changing delivery dates
- Failure of the government to supply a contractor with what he/she needs to properly fulfill the requirements of the contract
- Any other “event” that would keep a contractor from completing the contract or from being able to perform the contract.
The dispute is triggered when one of these events occurs and all informal attempts to resolve the issue fail.
Procedures for Disputes
For a dispute, a contractor is required to submit the claim in writing to the contracting officer.
The contractor should describe the following in the claim:
- Situation
- State
- What action the claim is asking for
- Request a final decision.
The contracting officer will have 60 days to respond after receiving the written notice. If the contractor has not heard from the contracting officer in this time period than the request is considered denied.
If the claim is denied, the contractor can file a written “Notice of Appeal” with the Contracts Appeals Board and send a copy to the contracting officer. The contractor must do this within 90 days of the denial.
Court Of Federal Claims
A government contractor also has the option of applying directly to the Court of Federal Claims as an alternative to the Notice of Appeal process. This court has authority under the Contracts Disputes Act to decide an appeal of a contracting officer’s final decision. This can take up to a year.
The Government Would Like to Keep Contract Conflicts Out of Court
All contractors have the right to dispute and appeal. However, the government prefers to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. The government expects you to use reasonable efforts to resolve controversies, prior to the submission of a dispute.
Remember To Be Reasonable
When an unfair decision is put forth then it definitely should be protested with voracity. However, you should be reasonable in your claims. The federal government is a very lucrative customer and you do not want to harm this relationship for unnecessary reasons.
Nothing Happens Until You Register With SAM.
One of the first things that one needs to do is to be registered with SAM.
SAM stands for System Award Management.
To do any business with the federal government, you must register your business in the System for Award Management directory. The government will not hire any type of business (large or small) that has not registered in the SAM directory.
Please read one of the helpful blog articles on our site Everything You Need to Know About SAM for Small Businesses. These blogs will help give you all the information you need to understand how we can help make the process very easy for you. Sam Directory will happily guide you through this often confusing process. With our help, you will be able to be on the path to government subcontracting quickly and efficiently.